Are WFP Case Subpoenas Legal?

From today’s Morning Memo:

A key union affiliate of the Working Families Party is questioning the legality of the latest round of subpoenas issued by a special prosecutor investigating the labor-backed organization’s 2009 campaign activities.

In an Aug. 5 letter to the special prosecutor, Roger Adler, the attorney for political action committee of the Communications Workers of America noted that by sending a July 1 subpoena to the union’s political arm, Adler was “proceeding as if that were a valid grand jury subpoena.”

But in an Aug. 4 interview with Capital New York, Adler said “Grand Jury Number Two” in this long-standing case would not be impaneled until Friday, Sept. 5.

That was consistent with a claim made in an email to the CWA PAC attorney, James Reif, of Gladstein Reif and Meginniss, in which, Reif wrote to Adler, “you stated that the Richmond County Grand Jury will begin taking testimony on September 5, 2014.”

“Both of these statements following a July 18, 2014 email in which you stated that a grand jury would be impaneled on August 20, 2014,” Reif continued in his letter, which appears after the jump.

“Your statement to the press and your July 18 and July 31 emails suggest that, in early July, there was no grand jury then impaneled which was investigating the 2009 campaign activities of the Working Families Party. In such a case, the subpoena to the CWA PAC dated July 1 and returnable July 8 is without legal authority.”

“Before my client takes further steps to respond to the subpoena, please confirm whether, as the foregoing statement and emails suggest, there was no grand jury impaneled in July in respect to the above-described investigation to properly authorize issuance thereof,” Reif concluded.

As of close of business Friday, Adler had not responded to Reif’s letter, according to a source with knowledge of this case.

Adler did not return a message left by CapTon at his office Friday afternoon seeking comment.

The CWA PAC is not the only entity to receive subpoenas from Adler, though he has repeatedly refused to confirm exactly to whom he sent them.

SEIU 1199 political director Kevin Finnegan, in that same Aug. 4 Capital NY report, confirmed the union had also received a subpoena from Adler, had retained counsel and would be “cooperating fully.”

An attorney for Staten Island Councilwoman Debi Rose confirmed to The Staten Island Advance on Aug. 5 that Rose had also received a subpoena, is not a target of Adler’s investigation and would also be “cooperating fully” with the special prosecutor.

According to the Advance, Adler had also issued subpoenas to the WFP itself, the NYC Campaign Finance Board, 32 BJ SEIU, and District Council 37.

Adler told the Advance that the grand jury would meet on Wednesdays and Fridays of each week, and that he expected it to last until sometime in November.

“I just want to make sure we have more than enough time,” Adler told the Advance. “At the end of October, we’ll have a better idea how deep into November we’re going to have to go.”

Adler previously served subpoenas on WFP officials in 2013.

Those were the first subpoenas the party had received since Adler, a Brooklyn Democrat, was tapped in January 2012 to be the special prosecutor in this case after Staten Island District Attorney Dan Donovan, who started the probe into the party’s finances in 2009, recused himself in 2010 – a move he still has never publicly explained.

The state’s highest court, the Court of Appeals, recently ruled that Donovan, a Republican, was correct in recusing himself and declined the WFP’s request to overturn Adler’s appointment.

This case stems from work done by the WFP’s now-defunct for-profit arm, Data & Field Services, for candidates in the 2009 NYC elections – including Rose and now-NYC Mayor Bill de Blasio, who, at the time, was running what ended up being a successful bid for public advocate. That win propelled him to his current position.

That work was allegedly done at a reduced rate for WFP-endorsed candidates in an effort to circumvent limits set by the CFB. The party’s opponents said the work was so cheap it should have been considered an in-kind campaign contribution, which candidates are required to disclose.

The WFP settled a civil suit in 2010 for $100,000 that alleged its efforts had given Rose an unfair advantage in her successful 2009 race. The money went to cover legal fees for attorney and former Giuliani administration deputy mayor Randy Mastro, who brought the suit, and the party did not admit wrongdoing.

The Manhattan US attorney’s office investigated the WFP and Data & Field Services in 2010. No charges were ever issued.

At the time, the probe caused then-AG Andrew Cuomo to hedge on whether he would run on the WFP line, causing the party to back a placeholder candidate for governor.

Cuomo eventually did agree to accept the party’s endorsement, but only after it fully backed his campaign platform, despite the fact that it contained a number of proposals the labor community deemed anti-union.

This year, Cuomo and the WFP again clashed over the party’s endorsement, except this time, it was the party threatening to withhold its support unless the governor agreed to support key initiatives in its progressive agenda.

Cuomo battled Fordham Law Prof. Zephyr Teachout for the WFP endorsement and won. Teachout is now mounting a long-shot Democratic primary challenge to Cuomo, who, in turn, is challenging her residency and legitimacy as a gubernatorial candidate. A decision in that case is expected later today.

The WFP and its allies have long maintained that Adler’s efforts are political motivated, and this latest development with his subpoenas only added fuel to that fire.

“Given the fact that the US attorney thoroughly investigated the same issues and found no wrongdoing, the special prosecutor’s use of improper and unlawful subpoenas raise serious questions about his motives and goals,” said the source with knowledge of this case.